FREEDOM OF INFORMATION (MISCELLANEOUS) AMENDMENT BILL

 Committee Stage – In committee. (Continued from 24 September 2020.)

 Page 3132 / 3133                                            HOUSE OF ASSEMBLY                                   Thursday, 15 October 2020

 The Hon. G.G. BROCK: A point of clarification: is this amendment from the Attorney’s 35(4)? The CHAIR: Yes.

The Hon. G.G. BROCK: Well, I have No. 35(3). This is clause 8, amendment No. 1: 8B— Proactive disclosure policies. Is this the one we are on?

The CHAIR: So you have an amendment in your name as well?

The Hon. G.G. BROCK: Yes, Mr Chairman. Mine was submitted on 2 July and the Attorney’s was filed on 20 July. It is similar, but it is page 8, clause 8, lines 4 to 12, but she has two of my suggested amendments excluded from her amendments.

The Hon. V.A. CHAPMAN: I am happy with that. I will just resume my copy of it, but I am happy for amendment No. 1 of the member for Frome on his schedule—again, I do not have a No. 1. Is your amendment 35(1)?

The CHAIR: While you are talking amongst yourselves, this is what I think we will do. We will run with the Attorney’s amendment. We will move that. Member for Frome, before you go, what we will do is go with the Attorney’s amendment, and if that passes you can then move to amend that amendment.

The Hon. G.G. BROCK: When you file it, I would have thought it takes precedence. My amendment is 35(3) of bill No. 35. The Attorney’s is 35(4); it is exactly the same issue. It is about proactive disclosure policies, 8B. I have 1, 2, 3 and 4 sections there. The Attorney has hers, but there is just one section there. Her amendment is to try to get this in front of mine with 2, 3 and 4 excluded, and then I have to try to add mine in.

The Hon. V.A. CHAPMAN: Not for the reasons the member for Frome has said, nevertheless, I agree that amendment No. 1 as scheduled in the member for Frome’s document 35(3) should precede the first amendment in my name as Attorney-General on 35(4). I am happy for amendment No. 1—not the rest—standing in the name of the member for Frome, filed on 2 July 2020, to be put first.

The CHAIR: It is possible and feasible, I am advised. What you will have to do first, Attorney, is withdraw the amendment you have moved.

The Hon. V.A. CHAPMAN: I seek leave to withdraw my motion for amendment No. 1 standing in my name on schedule 35(4). Leave granted; amendment withdrawn.

The CHAIR: Thank you. We will go to the member for Frome. Apologies for any confusion.

The Hon. G.G. BROCK: It is coincidental that it is the same clause 8, etc., but just excluding a couple of parts. I move: Amendment No 1 [Brock–1]— Page 8, lines 4 to 12 [clause 8, inserted section 8B]—Delete inserted section 8B and substitute: 8B—Proactive disclosure policies (1) The regulations may, consistently with the proactive disclosure principles, prescribe 1 or more proactive disclosure policies requiring specified agencies, or agencies of a specified class, to publish information relating to, or held by, them (other than personal information of a person). (2) Regulations may not be made under this section in relation to any local government agencies unless the Minister has undertaken consultation on the proposed regulations with the Local Government Association; and

• has certified that the Minister is satisfied that the proposed regulations, as far as is practicable, avoid duplication with other statutory duties imposed on the local government agencies and do not impose unnecessary or unreasonable costs on the local government agencies.

(3) A copy of the Minister’s certificate under subsection (2)(b) must be provided to the Legislative Review Committee of the Parliament as soon as practicable after the making of the regulations.

(4) In this section— local government agency means a council or an assessment panel under the Planning, Development and Infrastructure Act 2016.

Like other members here, I fully support the need for open, transparent government based upon proactive disclosure to the fullest practical extent of public expenditure. I am glad to see that the government is proceeding to entrench this policy into the legislative framework. However, concerns have been raised with me about the precise manner in which it has been done.

Under new section 8B, to be inserted into the Freedom of Information Act by this bill, the Premier is empowered to prepare and publish a proactive disclosure policy consistent with the proactive disclosure principles set out in new section 8A, which have a direct effect on agencies within the meaning of the act.

To remind members, under section 3 of the Freedom of Information Act an agency is defined to include a local council. The government’s good intentions are not doubted in moving these provisions which reflect current public sector practice. However, extending the proactive disclosure regime to local government sets up a conundrum. It puts local councils in a situation where they are subject to the direction of the Premier despite the reality that they exist beyond the normal bounds of the public sector as conventionally understood.

Indeed, I note the general view that councils are not part of the Crown in right of the state. Section 136 of the Local Government Act, for example, makes it clear the Crown is not liable for any debts or liabilities of a council. There are similar bodies which, through established or given powers by statute, are excluded from being regarded as part of the Crown. Universities such as Torrens, Flinders and Adelaide, the Uniting Church Property Trust, the Stadium Management Authority and the National Trust are some examples.

It is not suggested that it is inappropriate for councils to be subject to a proactive disclosure regime, but I do suggest that councils are in quite a different category to other public sector agencies, such as the mere direction by the Premier, which is not disallowable by this parliament and is sufficient basis to bind them. However, it may be a direction from the Premier is not enough in any event.

Proactive disclosure should be entrenched in law, a breach should be a breach of the law and parliament should have a direct stake in scrutinising the proactive disclosure policy when it is made, when it is updated and when it is reviewed. For these reasons, this amendment changes the nature of the proactive disclosure policy. Instead of a premier’s direction, the policy is a regulation made by the Governor, subject to parliamentary scrutiny and more amenable to binding non-public sector entities such as local councils.

Additionally, the amendment includes a requirement for the responsible minister to consult with the Local Government Association and have regard to the need to avoid duplication of council obligations under other laws prior to a regulation being made which would then impact upon council proactive disclosure obligations.

This amendment comes after discussions with the Local Government Association, who raised this issue with myself and my colleagues of the crossbench, as well as discussions with individual councils and my own experiences as a former local government minister and a mayor. I commend this amendment to the house and ask that it be dealt with. I think it is common sense to be able to have sections 8B(1), (2), (3) and (4) as part of the process.